Case on the Restriction on Treatment of Prisoners Subject to a Disposition for Forfeiture of Rights

[2014Hun-Ma45, May 26, 2016]

In this case, the Constitutional Court held that the provision concerning Item 6 of Article 108 referred to in the main text of Article 112 Section 3 of the ‘Administration and Treatment of Correctional Institution Inmates Act,’ which restricts prisoners subject to a disposition for forfeiture of rights from watching television, does not violate the Constitution, and that the provision concerning Item 13 of Article 108 referred to in the main text of Article 112 Section 3 of the above Act, which restricts the above prisoners from outdoor exercise, infringes on the complainant’s physical freedom and thus violates the Constitution.

Background of the Case

(1) While serving his or her prison sentence, the complainant received a disposition for forfeiture of rights for 25 days on charges of noncompliance with orders and obstruction of duties, executed from November 10 through December 4, 2013. During the period rights were forfeited, the complainant concurrently received the dispositions for prevention from participation in joint events, restriction on reading newspapers, restriction on watching television, restriction on using the goods purchased at his or her own expense, suspension of work, restriction on telephone communications, restriction on writing, restriction on receiving and sending correspondence, restriction on holding meetings and suspension of engaging in outdoor exercise.

(2) Thereupon, the complainant filed a constitutional complaint on January 10, 2014, claiming that the provisions of the ‘Administration and Treatment of Correctional Institution Inmates Act,’ which imposed the above restrictions on treatment during the period rights were forfeited, infringed on the complainant’s human dignity and worth, right to judicial

process, freedom of expression, etc.

Subject Matter of Review

The subject matter of this case is whether the provisions concerning Items 6 and 13 of Article 108 referred to in the main text of Article 112 Section 3 of the ‘Administration and Treatment of Correctional Institution Inmates Act’ (wholly amended by Act No. 8728 on December 21, 2007) (hereinafter referred to as the “Forfeiture Provision”) infringeon the complainant’s fundamental rights, and thus violate the Constitution. The Instant Provision and relevant provision read as follows:

Provision at Issue

Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Act No. 8728 on December 21, 2007)

Article 112 (Execution of Disciplinary Action)

(3)The restriction on treatment provided for in Items 4 through 13 of Article 108 shall be imposed concurrently on those who are subject to a disposition provided for in Item 14 of Article 108 for the relevant period:Provided, That if deemed especially necessary for the remedy against infringement of rights of prisoners and convicted prisoners’ edification or sound rehabilitation into society, any warden may permit them to write works, receive correspondence, hold a meeting, or do outdoor exercise.

Related Provision

Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Act No. 8728 on December 21, 2007)

Article 108 (Types of Disciplinary Action)

The types of disciplinary action shall be as follows:

6. Restriction on watching television for up to 30 days;

13. Suspension of doing outdoor exercise for up to 30 days;

14. Forfeiture of rights for up to 30 days.

Summary of the Decision

1. Review of the Provision Concerning Item 6 of Article 108 in the Forfeiture Provision

The provision concerning Item 6 of Article 108 in the Forfeiture Provision imposes the disadvantage of restriction on watching television during the period rights are forfeited, concurrently with the execution of forfeiture of rights, on persons subject to a disposition for forfeiture of rights. This is found to serve a legitimate purpose and be an appropriate means, for its purpose is to compel observation of discipline so as to maintain safety and order within the confinement facilities.

A disposition for forfeiture of rights has the purpose of confining a person subject to the disposition for forfeiture of rights to the discipline ward, so the person can concentrate on self-reflection. To allow such a person to watch television like an ordinary prisoner is difficult, given the operational affairs of the correctional institution. In place of watching television, a person that has received a disposition for forfeiture of rights has access to other information sources, such as books kept in the confinement facilities. Such disadvantages do not outweigh the public interest of maintaining order in the confinement facilities through compliance with regulations.

The provision concerning Item 6 of Article 108 in the Forfeiture Provision does not infringe on the complainant’s right to knowledge.

2. Review of the Provision Concerning Item 13 of Article 108 in the Forfeiture Provision

The provision concerning Item 13 of Article 108 in the Forfeiture Provision imposes the disadvantage of suspension of outdoor exercise as a rule during the period rights are forfeited, concurrently with the execution of forfeiture of rights, on persons subject to a disposition for forfeiture of rights. This serves a legitimate purpose and is an appropriate means, for its purpose is to compel observation of discipline so as to maintain safety and order within the confinement facilities.

Outdoor exercise is a minimal, basic request to maintain the physical and mental health of a prisoner held in confinement, and maintaining the health of prisoners is essential in achieving the fundamental goals of the administration of their punishment, which are correction and edification and their sound rehabilitation into society.

The provision concerning Item 13 of Article 108 in the Forfeiture Provision prohibits persons who have received a disposition for forfeiture of rights to outdoor exercise, as a rule, although exceptions are made at the warden’s discretion. However, despite the existence of a less restrictive measure in which outdoor exercise is restricted in exceptions where the prisoner risks engaging in disturbing or disorderly conduct or harming other people, and where permission for this prisoner to engage in outdoor exercise would make it difficult to achieve the goal of the disposition for forfeiture of rights, the above provision as a rule prohibits all persons who have received a disposition for forfeiture of rights to outdoor exercise. Moreover, while the above provision allows outdoor exercise as an exception, the minimum criterion for granting the opportunity to engage in outdoor exercise is not clear. This violates the principle of least restrictive means. The above provision imposes an excessive disadvantage on the mental and physical health of the prisoner by allowing exceptions in outdoor exercise at the warden’s discretion, and this outweighs the public interests. Thus, the above provision does not achieve a balance of interests.

The provision concerning Item 13 of Article 108 in the Forfeiture Provision infringes on the complainant’s physical freedom.

Summary of Dissenting Opinion of Three Justices on the Provisionconcerning Item 6 of Article 108 of the Forfeiture Provision

Television delivers information on issues that occur in society practically in real-time, and is a medium easily accessible by illiterate people. Persons that have received a disposition for forfeiture of rights are restricted from telephone communications, receiving and sending correspondence, holding meetings, listening to the radio, reading newspapers, etc. The additional restriction on watching television would prevent the prisoner from learning about what is happening in society, for up to 30 days. Acquiring information by watching television is a largely personal act related to the intellectual activity of an individual, and allowing prisoners to acquire new information by watching television has no possibility of endangering the attainment of the purpose of the disposition for forfeiture of rights, as long as they are prohibited from watching entertainment programs that go against the purpose of the disposition for forfeiture of rights. In fact, the prisoner can acquire the latest information to prepare for rehabilitation into society, and the sound mental activity of the prisoner will be encouraged, contributing to his correction or edification.

Therefore, the provision concerning Item 6 of Article 108 in the Forfeiture Provision is an excessive restriction of the right to knowledge, and violates the Constitution.